Cybersecurity and Counterterrorism

¦ Constitutional protections do not, however, necessarily apply in every particular in every foreign place, even to a citizen or qualifying alien. The scope of its application may depend on pragmatic and political concerns, although the Supreme Court has so held only with respect to the right to petition for a writ of habeas corpus.

¦ There is a presumption against extraterritorial application of a statute. This presumption is a canon of statutory construction, not a limit on congressional legislative power.

¦ The presumption may be rebutted by express statutory language asserting extraterritorial effect. It also may be rebutted by implication from the text, context, and purpose of a statute, or, more narrowly, according to Justices Alito and Thomas, from the “focus of the statute.”

¦ Although a statute may trump international law, and Congress is free to give extraterritorial effect to a law even in violation of international norms, our laws are construed to avoid conflict with such norms if possible.

¦ Under international law, Congress may prescribe regulations for activities abroad if the regulations satisfy one of five principles reflecting the legitimate sovereign interests of the United States. If they are consistent with one or more of these principles, they also must be reasonable in the circumstances.

No comments.

August 22

Posted on August 19, 2017 and filed under 2017 Fall.

Breaking News

Trump’s Afghanistan plan

Charlie Wilson’s War (not the movie)

Legacy of Ashes

Talk of ‘Preventive War’ Rises in White House Over North Korea

Is this allowable under the UN Charter?

Elon Musk leads 116 experts calling for outright ban on killer robots

Autonomous robots that can target and kill on their own are the cutting edge issue in law of war.

Spanish Terrorist Attack

Salim V. Mitchell – Lawsuit Against Psychologists Behind CIA Torture Program

This is the first successful case in all of the attempts to bring civil actions against the persons involved in the US torture program post 9/11.

Assignments

Salim V. Mitchell – Memorandum Opinion Re: Motions For Summary Judgment (August 7, 2017)

Read C. Alien Tort Statute – p. 25 to D. Defendants’ Liability on ATS Claim – p. 31. This is the most detailed and recent analysis of the extraterritorial application of the ATS since Kiobel.

Chapter 3 to B. THE PRESIDENT’S DEFENSIVE WAR POWER, page 74.

Resources

Structure of the UN

The Security Council

Charter of the United Nations

June 26, 1945, 59 Stat. 1031, T.S. No. 993

CHAPTER I. PURPOSES AND PRINCIPLES…

Article 2…

3. All Members shall settle their international disputes by peaceful means in such a manner that international peace and security, and justice, are not endangered.

4. All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.

5. All Members shall give the United Nations every assistance in any action it takes in accordance with the present Charter, and shall refrain from giving assistance to any state against which the United Nations is taking preventive or enforcement action.…

7. Nothing contained in the present Charter shall authorize the United Nations to intervene in matters which are essentially within the domestic jurisdiction of any state….

CHAPTER V. THE SECURITY COUNCIL…

Article 25…

The Members of the United Nations agree to accept and carry out the decisions of the Security Council in accordance with the present Charter.…

CHAPTER VII. ACTION WITH RESPECT TO THREATS TO THE PEACE, BREACHES OF THE PEACE, AND ACTS OF AGGRESSION

Article 39

The Security Council shall determine the existence of any threat to the peace, breach of the peace, or act of aggression and shall make recommendations, or decide what measures shall be taken in accordance with Articles 41 and 42, to maintain and restore international peace and security.

Article 40

In order to prevent an aggravation of the situation, the Security Council may, before making the recommendations or deciding upon the measures provided for in Article 39, call upon the parties concerned to comply with such provisional measures as it deems necessary or desirable. Such provisional measures shall be without prejudice to the rights, claims, or position of the parties concerned. The Security Council shall duly take account of failure to comply with such provisional measures.

Article 41

The Security Council may decide what measures not involving the use of armed force are to be employed to give effect to its decisions, and it may call upon the Members of the United Nations to apply such measures. These may include complete or partial interruption of economic relations and of rail, sea, air, postal, telegraphic, radio, and other means of communication, and the severance of diplomatic relations.

Article 42

Should the Security Council consider that measures provided for in Article 41 would be inadequate or have proved to be inadequate, it may take such action by air, sea, or land forces as may be necessary to maintain or restore international peace and security. Such actions may include demonstrations, blockade, and other operations by air, sea, or land forces of Members of the United Nations.…

Article 51

Nothing in the present charter shall impair the inherent right of individual and collective self-defense if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security. Measures taken by Members in the exercise of this right of self-defense shall be immediately reported to the Security Council and shall not in any way affect the authority and responsibility of the Security Council under the present Charter to take at any time such action as it deems necessary in order to maintain or restore international peace and security.…

No comments.

August 24

Posted on August 22, 2017 and filed under 2017 Fall.

Breaking News

Indian Supreme Court in landmark ruling on privacy

National Infrastructure Advisory Council Report on Cybersecurity

Should the government prevent Google from shutting down the Daily Stormer?

Assignment

Read from B. THE PRESIDENT’S DEFENSIVE WAR POWER – p.74 to D. DEFENDING AGAINST AL QAEDA AND THE ISLAMIC STATE.p. 91. This is not many pages, but most of the content is buried in the dense notes. Read them carefully.

Read: Prize Money, from: A Naval Encyclopædia: Comprising a Dictionary of Nautical Words and Phrases: Biographical Notices, and Records of Naval Officers; Special Articles of Naval Art and Science. LR Hamersly & Company, 1884.

Resources

Torreon, Barbara S. “Instances of use of United States armed forces abroad, 1798-2015.” LIBRARY OF CONGRESS WASHINGTON DC WASHINGTON DC, 2015.

No comments.

August 29

Posted on August 25, 2017 and filed under 2017 Fall.

Breaking News

Why the Arpaio Pardon Matters

‘Missile passing’: Japan wakes to ominous warning about North Korean launch

Bubba gets an RPG

A Win for Privacy Is a Win for the Web

Is this really a win?

Violent Alt-Right Chats Could Be Key To Charlottesville Lawsuits

Assignment

Read to Chapter 4, B. APPLYING IHL—TARGETING IN ARMED CONFLICT, p. 124. This is dense, read carefully and think about how the codes fit together. Make sure you appreciate the different treatment for combatants and non-combatants.

Resources

Chapter 3

Map of Afghanistan

Authorization for Use of Military Force Pub. L. No. 107-40, 115 Stat. 224 (Sept. 18, 2001)

WAGING WAR ON TERRORISTS: SUMMARY OF BASIC PRINCIPLES

It is generally agreed that under Article 51 of the U.N. Charter a state may use force in individual or collective self-defense, not only once an armed attack is underway but before it is completed. But a state exercising the inherent right of self-defense must not only report its use of force to the Security Council, as required by Article 51, but also describe the circumstances that justified that use.

It is generally agreed that a state attacked by international non-state terrorists, like Al Qaeda, may exercise its inherent right of self-defense under Article 51 by using force against the terrorists residing in another state, if the host state is “unable or unwilling” to abate the continuing terrorist threat.

The U.N. Security Council may authorize member states to use force to “maintain and restore international peace and security.” Such force may be used against terrorists or terrorist organizations.

The framing of the Declare War Clause (“leaving to the Executive the power to repel sudden attacks,” according to Madison’s notes), the practical necessity to defend against attacks, and the Commander in Chief Clause all suggest that the President has an inherent power to fight what we have called defensive war. But the defensive war power may be subject to legal limits drawn from international law, as well as temporal limits that depend on the duration of a threat or attack and practical funding limits. These limits are disputed, mainly unaddressed by case law, and subject to inter-branch negotiation.

Because terrorists attack soft civilian targets without warning, some have argued that the only effective defense against a terrorist attack is to attack the terrorists even before they can begin to implement their plan of attack. But there is no consensus about the factual predicates for such anticipatory self-defense in advance of an actual armed attack.

Congress may authorize the use of armed force by declaring war or by enacting an authorization for the use of military force (AUMF). Because the Constitution does not prescribe the form of AUMFs, some courts have inferred congressional authorization for the use of force from defense appropriation acts and related legislation that does not expressly authorize force.

The War Powers Resolution (WPR) imposes consultation and reporting requirements on the President for deployments of armed forces into hostilities, and it requires the President to obtain specific statutory authorization for such deployments within a fixed time period or terminate the deployment. No President has acknowledged the constitutionality of the WPR. The meaning of “hostilities” under the WPR, and the WPR’s legal effect on statutorily unauthorized deployments or claims of implied statutory authorization, among other questions, remain disputed.

The Commander in Chief Clause at a minimum vests the President with the unitary civilian command of the armed forces, and gives him control of day-to-day tactical military operations in authorized conflicts or defensive war, subject to the terms of any authorization from Congress. But precisely which operations fall within the Commander in Chief’s command authority, and whether command authority is beyond the reach of statute, are questions that are disputed and mainly unaddressed by case law.

Chapter 4

Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, 1996 I.C.J. 226, 257 (July 8) – The Cardinal Principles

Convention (III) relative to the Treatment of Prisoners of War. Geneva, 12 August 1949

Convention (IV) relative to the Protection of Civilian Persons in Time of War. Geneva, 12 August 1949

Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), 8 June 1977.

Rome Statute of the International Criminal Court 2187 U.N.T.S. 90, July 17, 1998.

No comments.

August 31

Posted on August 30, 2017 and filed under 2017 Fall.

Breaking News

Why Pakistanis are terrified Trump will bring back drone strikes

This was just posted last night or I would have assigned it as a reading for class. It questions the notion of targeted killing as being targeted at all, and reminds us that this was an Obama policy.

U.N. Condemns North Korea’s Latest Missile Tests, but Takes No Action

A uranium bank just opened in Kazakhstan to stop the spread of nukes

The Arpaio Pardon Has Plenty Of Precedents … That Got Other Presidents In Trouble

Just a reminder that Trump is not the first president to make a controversial pardon that is a slap in the face to the courts. Note the irony of one of the Reagan pardons.

Assignment

Read to C. TARGETED KILLING AND INTERNATIONAL HUMANITARIAN LAW, p. 146

Resources

Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions (Philip Alston), Addendum: Study on Targeted Killings, at 17-18, U.N. Doc. A/HRC/14/24/Add.6 (May 28, 2010).

An international armed conflict is a conflict between two or more states, even if a state of war is not recognized by one of them. Common art. 2 of the 1949 Geneva Convention, Aug. 12, 1949, 75 U.N.T.S. Was the Second Intifada an international armed conflict?

INTERNATIONAL HUMANITARIAN LAW: SUMMARY OF BASIC PRINCIPLES

International humanitarian law (IHL) has evolved alongside domestic and other international law to govern the conduct of states and individuals during armed conflicts and to limit the suffering caused by war.

The threshold question of when IHL applies is complicated when states carry out military operations against non-state terrorist and insurgent groups. The difficulty lies chiefly in determining whether an “armed conflict” is underway, and in distinguishing combatants from noncombatants.

Different IHL rules apply to international and non-international conflicts. The distinction is important in determining the level and detail of protections afforded civilians and limits on military operations.

The United States is committed to following IHL, including many of the provisions of the Geneva Protocols.

The core principles of distinction, military necessity, proportionality, and unnecessary suffering are reflected in the Geneva Conventions and Protocols, and in customary law. Their application in individual cases, such as the Palestinian intifada, requires careful analysis of the particular facts.

Drone Strikes in Pakistan

No comments.

September 5

Posted on September 1, 2017 and filed under 2017 Fall.

Breaking News

The Secret History of FEMA

Can we use targeted killing against the North Korea?

North Korea / Trump condemns ‘very hostile’ nuclear test

Iran is adhering to nuclear deal limits, UN says, despite Donald Trump claim

Assignment

Why Pakistanis are terrified Trump will bring back drone strikes

Map of the strikes

Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions (Philip Alston), Addendum: Study on Targeted Killings, at 17-18, U.N. Doc. A/HRC/14/24/Add.6 (May 28, 2010). p.17-8

Finish Chapter 5.

Resources

Executive Order No. 12,333, 46 Fed. Reg. 59,941 (Dec. 4, 1981)

2.11 Prohibition on Assassination. No person employed by or acting on behalf of the United States Government shall engage in, or conspire to engage in, assassination.

2.12 Indirect Participation. No agency of the Intelligence Community shall participate in or request any person to undertake activities forbidden by this Order.…

U.S. Policy Standards and Procedures for the Use of Force in Counterterrorism Operations Outside the United States and Areas of Active Hostilities

Mathews v. Eldridge

Lawfulness of a Lethal Operation Directed Against a U.S. Citizen Who Is a Senior Operational Leader of Al-Qa’ida or An Associated Force

Read the highlighted and bookmarked text.

Targeting Terrorists: Summary of Basic Principles

Outside of armed conflict or a judicial process, human rights law (HRL), in relevant part, forbids a governmental killing unless the government uses no more force than absolutely necessary as a last resort to defend a person from imminent unlawful violence. The right to use lethal force thus turns on the conduct, not the status, of the target.

An international armed conflict is a conflict between states, whether or not one of them recognizes a state of war, and a non-international armed conflict is a conflict between a state and an identifiable group, or between identifiable groups, exceeding a minimal level of intensity and duration, with a territorial nexus to a state or across borders.

The United States takes the view that in armed conflicts international humanitarian law (IHL) (also called the law of armed conflict or LOAC) supplants HRL.
In an armed conflict lethal force may be used against combatants, civilians for as long as they take a direct part in hostilities, and other civilians incidental to a lawful military attack (collateral damage). The use of force must be necessary to achieve legitimate military objectives and proportionate (e.g., the incidental loss of civilian lives must be justified by the legitimate military benefit of the attack), but it is not restricted to defense against imminent attack.

The United States takes the view that national self-defense also justifies the use of lethal force even outside an area of active hostilities (or armed conflict), but it has declared that it will use such force only when (1) a terrorist target poses a continuing, imminent threat to U.S. persons, (2) capture and other non-lethal alternatives are not feasible, (3) the state where the target is located is unwilling or unable to address the threat, and (4) there is near certainty that the target is present and that noncombatants (other than those taking a direct part in hostilities) will not be injured or killed.

Executive Order No. 12,333’s ban on assassination does not apply to the targeted killing of combatants or civilians taking a direct part in hostilities in armed conflict or to targeted killing in self-defense.

The Fifth Amendment affords a U.S. citizen due process before the government deprives him of life both at home and abroad, but the United States takes the view that these standards, as implemented by a reportedly deliberate inter-agency executive process in which the President personally approves additions to a “kill list,” with periodic notice to congressional committees, is all the process that U.S. citizens are due. No U.S. court has yet ruled on what process is due a targeted U.S. citizen, although the Supreme Court has ruled on the process due a U.S. citizen who is detained by the military.

No comments.

September 7

Posted on September 5, 2017 and filed under 2017 Fall.

Breaking News

Florida flood risk

Google street view just got a lot more intrusive

Syrian regime dropped sarin on rebel-held town in April, UN confirms

Assignment

Chapter 6 to E. INTELLIGENCE REORGANIZATION AFTER 9/11, p 207

This is mostly structural – how the agencies are set up. Read the case and the Notes and questions carefully. They are what we will discuss.

No comments.

September 12

Posted on September 7, 2017 and filed under 2017 Fall.

Breaking News

Apple’S Ios 11 Will Make It Even Harder For Cops To Extract Your Data

4 Maps That Show the Gigantic Hurricane Irma Evacuation

They are now asking people to evacuate South Florida. Follow the process of evacuation and let’s hope it all works out. The key difference from Houston is storm surge. You cannot shelter in place if you are facing surge.

Equifax hack hits credit histories of up to 143 million Americans

These are private surveillance agencies that collect very detailed information about you. This includes all of your identify info, including SS#s, driving license numbers, addresses, and personal family information. Depending on the level of the hack, this is everything a criminal needs to hijack your identity. Equifax’s stock is taking a hit.

Excellent article on game theory analysis of nuclear standoffs.

This is a good guide to the thinking behind MAD (mutually assured destruction) and the dance with North Korea.

Humorous introduction to game theory

Assignment

Finish Chapter 6

Resources

Organization of Intelligence Agencies

Executive Order 12333 United States Intelligence Activities

The National Counterterrorism Center

Presidential Memorandum — Establishment of the Cyber Threat Intelligence Integration Center

Mathews v. Eldridge

History of the Internet – “DARPA and the Internet Revolution.” DARPA: 50 years of bridging the gap (2008): 78-85.

Structure of IPv4 versus IPv6 packets

Maps of the Internet

No comments.

September 14

Posted on September 12, 2017 and filed under 2017 Fall.

Breaking News

Updated Criminal Procedure Rule Allows Government to Remote-Hack Computers

Senate Rejects Bipartisan Effort to End 9/11 Military Force Declaration

South Korea Plans ‘Decapitation Unit’ to Try to Scare North’s Leaders

RT, Sputnik and Russia’s New Theory of War – Fake News as War

Assignment

History of the Internet – “DARPA and the Internet Revolution.” DARPA: 50 years of bridging the gap (2008): 78-85.

Personal privacy protection (on the Internet)

I will continue our discussion of the Internet and will introduce our next discussion of the 4th Amendment, time permitting.

Resources

VPN versus TOR

No comments.

September 19

Posted on September 15, 2017 and filed under 2017 Fall,Class assignments.

Breaking News

A good Internet security blog

After London explosion, Trump criticizes Britain’s counterterrorism approach — for all the wrong reasons

CIA wants expanded authority to conduct drone strikes

Google and Facebook Face Criticism for Ads Targeting Racist Sentiments

Was there a FISA (national security) warrant for electronic surveillance on Trump campaign official?

Assignment

We are going to read some additional background on cybersecurity. The additional text is free, you just have to download your own copy. Go this page and in the upper right hand corner, there is a link to download a free PDF. You can create your own free account for downloading books in the future, or you can check out as a guest:

At the Nexus of Cybersecurity and Public Policy: Some Basic Concepts and Issues (2014)

Read the first three chapters. This is not as dense reading as the case book, and we have covered some of it. You do not have to memorize this, it is get you up to speed on the basic topics.

Resources

Administrative Searches – from the founding to Snowden

No comments.

September 21

Posted on September 19, 2017 and filed under 2017 Fall.

Breaking News

Stanislav Petrov, Man Who Saved World From Nuclear Annihilation, Has Died – important bit of history

Manafort and FISA

Slate Money podcast discussing the Equifax hack with a leading data scientist, along with a discussion of a new cyberattack fear – warning, this podcast contains mature language and adult themes.

Assignment

Look over slides on administrative search – Administrative Searches – from the founding to Snowden

Read Chapter 7 to C. A FOREIGN INTELLIGENCE EXCEPTION?, p. 235

We might not get to most of this, but it is useful to have it in mind as we think about administrative searches.

Podcast discussing the difference between FISA and criminal warrants in the Manafort investigation

No comments.

September 26

Posted on September 20, 2017 and filed under 2017 Fall.

Breaking News

Pentagon Tests Lasers and Nets to Combat a Vexing Foe: ISIS Drones

Secrets in the Sky – ignoring the lessons of 9/11

Just Security – put this in your RSS feed to keep up with national security news

The countries added to Trump’s immigration ban don’t have very much terrorism

Assignment

Finish reading Chapter 7.

No comments.

September 28

Posted on September 26, 2017 and filed under 2017 Fall.

Breaking News

Ventura nuclear attack preparation video – Putting a happy face on nuclear attack.

Duck And Cover (1951) Bert The Turtle

Ventura County Nuclear Safety Education Guide

CDC Preparation guide for the Zombie Apocalypse

Assignment

Read chapter 8. Read CONGRESSIONAL AUTHORITY FOR FOREIGN INTELLIGENCE SURVEILLANCE: SUMMARY OF BASIC PRINCIPLES at the end first, to get oriented. Then look hard at the intro questions at the beginning of each case and make sure you can answer those as you read the case. There is a lot of material in this chapter. Our focus is to get a basic understanding of FISA and the legal issues it poses compared to conventional criminal law.

Resources

§ 1801 – Definitions
- B(1)(c) – lone wolf
- Why Is the Lone Wolf FISA Provision Never Used? And Just How Broad is the FISC Understanding of Group Agency?

No comments.

October 3

Posted on September 30, 2017 and filed under 2017 Fall.

Breaking News

Las Vegas Shooting

Terrorizing if Not Clearly Terrorist: What to Call the Las Vegas Attack?

Gun deaths

This “Ghost Gun” Machine Now Makes Untraceable Metal Handguns

Hellfire trigger system

How to Tell If North Korea and America Are Actually Headed to War

U.S. in Direct Communication With North Korea, Says Tillerson

Trump Says Tillerson Is ‘Wasting His Time’ on North Korea

Assignment

Chapter 9. There is a lot of material in this chapter, but a lot is historical development that is not critical to understanding the current law. Read the whole chapter, but concentrate on the requirements of the 702 program and how it is carried out. Pay particular attention to 3. Legal Analysis of 702 Collection to the end of the chapter, and review the notes and questions after this section.

Resources

50 U.S. Code § 1881a – Procedures for targeting certain persons outside the United States other than United States persons

50 U.S. Code § 1881c – Other acquisitions targeting United States persons outside the United States

What is a “Multi-Communication Transactions?”

NSA Stops Certain Foreign Intelligence Collection Activities Under Section 702

NSA will not collect email that only mentions a foreign selector.

No comments.

October 5

Posted on October 3, 2017 and filed under 2017 Fall.

Breaking News

The civil rights and Vietnam protests changed America. Today, they might be illegal.

Federal monitoring of social media

Australian gun control

Does the Stored Communications Act reach data held by Microsoft outside the US?

PETITION FOR A WRIT OF CERTIORARI

Leahy amendment to the Electronic Communications Privacy Act of 1986 (proposed)

What to watch for next week: Nuke deal hangs in balance as Trump plans Iran policy speech

Assignment

Chapter 10 – Third Party Doctrine

Much of this should be a review for you.

Resources

Short review of subpoenas

More info on Doe – Doe was the owner of the small ISP that got the NSL. It just happened that the NYC ACLU was one his ISP clients. Or maybe that was not just a coincidence, but we cannot know because he still cannot tell you want the FBI wanted. Here is the record of the litigation, a Wired story on the case, and here is his interview on On the Media.

The (redacted) NSL from the Doe Case

Doyle, Charles. “National Security Letters in Foreign Intelligence Investigations: A Glimpse of the Legal Background and Recent Amendments.” (2015).

Table of National Security Letter Statutes

National Security Letters sent to Google

Google has received in excess of 2000 NSLs.

Levels of Review

a. No standard or legal process: The government just gets the information it seeks.

b. Internal administrative process: There is no bifurcation between the issuing and enforcing authority.

c. Grand jury or administrative subpoena: The issuing and enforcing authority are bifurcated.

d. Certification court order: The government needs a court order, but gets it simply by certifying relevancy. The court does not decide whether the certification is justified.

e. Articulable facts court order: The government needs a court order and must offer specific and articulable facts to establish relevancy.

f. Probable cause search warrant: The traditional criminal law standard and the predicate preferred by the Fourth Amendment.

g. “Super” search warrant: Same, but government must first exhaust all other investigatory techniques or meet some other “plus” requirement beyond showing probable cause.

h. Prohibition: The government is forbidden from getting the information.

No comments.

October 17

Posted on October 11, 2017 and filed under 2017 Fall.

Breaking News

How the FBI recruits counter terrorism informants.

Assignment

Chapter 11

There is a lot of overlap between this chapter and previous material we have covered. This chapter concerns data mining of information that is covered by the third party doctrine. Focus on why the courts might still be concerned about the use of this data, even if traditional doctrine holds that there is no expectation of privacy in it. Look hard at the last section – Connecting the Dots – and it is notes and questions. Also look at Statistical Transparency Report Regarding Use of National Security Authorities (2016) to get an idea of how much of this collection is going on. This will close out our discussion of electronic surveillance.

Metadata collection after the USA Freedom Act

Chapter 12 to B Watchlisting at 420.

This is a review of border checkpoint searches. Some of this should be familiar to you from ACJ.

The 1970 Palestinian Hijackings of Three Jets to Jordan

No comments.

October 19

Posted on October 17, 2017 and filed under 2017 Fall.

Breaking News

New device detects texting while driving, but is it legal?

The next step in bots

Border Security – Firesign Theater

India’s national identity system

World Wide Geolocation System

Assignment

Think about the history of attacks on airlines before we talk about the 9/11 attack at the beginning of the chapter.

The 1970 Palestinian Hijackings of Three Jets to Jordan

D.B. Cooper: Everything you need to know in 5 minutes

How Hijackers Commandeered Over 130 American Planes — In 5 Years

Does the 9/11 screening make more sense in this context?

Finish Chapter 12 – Screening for Security

Resources

Krouse, William J., and Bart Elias. “Terrorist watchlist checks and air passenger prescreening.” LIBRARY OF CONGRESS WASHINGTON DC CONGRESSIONAL RESEARCH SERVICE, 2009.

No comments.

October 24

Posted on October 20, 2017 and filed under 2017 Fall.

Breaking News

Former National Security Officials Urge Section 702 Reauthorization in Letter to Congress

Assignment

Chapter 13 – HABEAS CORPUS: THE STRUCTURE OF THE SUSPENSION CLAUSE

Resources

Origin of Habeas Corpus

Suspension Clause

No comments.

October 26

Posted on October 24, 2017 and filed under 2017 Fall.

Breaking News

When Dissent Became Treason

The persecution of dissenters and foreigners during WWI.

The FBI has 7,000 phones it cannot unlock

Encryption makes a big difference in protecting your privacy, as long as you do not put your data in the cloud unencrypted or send it to a third party.

Assignment

Surveillance shifts from the NSA to local police

This is a short article, but it raises important questions about the decentralization of surveillance.

Chapter 14

No comments.

October 31

Posted on October 26, 2017 and filed under 2017 Fall.

Breaking News

Mariel detention correction: Clark v Martinez

It has been a while since I checked on the endgame for the Mariel detainees. In 2005 the Supreme Court ended indefinite immigration detentions.

How Fidel Castro and the Mariel boatlift changed lives and changed Miami

Niger Ambush Reignites Senate Debate Over Authorization Of Military Force

With Huge Fines, German Law Pushes Social Networks To Delete Abusive Posts

Under the measure — touted by many as the toughest law of its kind in the Western world — social media companies that have at least 2 million users in Germany, including Facebook, Google and Twitter, can be fined as much as 50 million euros ($58.3 million) if they fail to delete comments and posts that are deemed to violate German law. In clear-cut cases, the time that the platforms have to remove the offending material can be as little as 24 hours.

Assignment

Chapter 15

Resources

Executive Order 9066: The President Authorizes Japanese Relocation

Enemy Alien Act

Non-Detention Act

No comments.

November 2

Posted on October 31, 2017 and filed under 2017 Fall.

Exam Info

I have added an Exam Info page.

Breaking News

Manhattan Terror Attack Kills 8 as Pickup Truck Mows Down Cyclists

Assignment

It is that time in the course when we are going to skip some of the less critical material so we can get to more relevant materials. Chapter 16 concerns long term military detention of non-US persons, i.e., those at Guantanamo. Review the MILITARY DETENTION OF NON-U.S. PERSONS: SUMMARY OF BASIC PRINCIPLES on page 582, which we will discuss briefly in class. Then read Chapter 17. This is a dense chapter. Use the Notes and Questions to guide your reading, and I will try to focus our discussion on the issues they raise so that we can more efficiently cover the material.

Resources

28 USC 2680(h) – Exemptions to the FTCA

Comparison of 42 USC 1983 versus FTCA

Ziglar v. Abbasi, 137 S. Ct. 1843, 198 L. Ed. 2d 290 (2017)

No comments.

November 7

Posted on November 3, 2017 and filed under 2017 Fall.

Breaking News

An ICC Investigation of the U.S. in Afghanistan: What does it Mean?

Inside Bin Laden’s Files: GIFs, Memes, and Mr. Bean

Trump and the Rule of Law

Firearm Justifiable Homicides and Non-Fatal Self-Defense Gun Use (2015)

Mohamedou Ould Slahi was held in Guantanamo for 14 years and tortured, despite there being no evidence that he was connected to terrorism. He wrote a diary in the form of letters to his attorneys, which is our best picture of what it was like for the detainees. It is a fascinating story. The version that was published while he was still being held was heavily redacted. Once he got out, he filled in the redactions as best as he could remember what he wrote and that version has now been published.

Gitmo, Unredacted – The interviews

Guantánamo Diary – The book.

Assignment

Chapter 18

Read this carefully – we are going to talk about the definition of torture and whether one should be necessary under jus cogins. Should the authors of the torture memo have known this was torture? (What would be the standard for treatment under the Geneva convention?) As background, the best available information at the time this program was started was that it was useless for interrogation, and would, at best, generate unreliable information. The FBI had proven techniques that were also humane.

NB – We are going to track the Notes and Questions pretty closely in this chapter, as well as looking at the few cases.

Water Cure: US Policy and Practice in the Philippine Insurrection, Richard Prevost, ESQ, Member of the Virginia Bar and Military Law Section

Scan this and read the conclusion on p. 14 as background for the class discussion.

Resources

Army, U. S. “Field Manual 2-22.3 (FM 34-52). Human intelligence collector operations.” (2006). – PROHIBITION AGAINST USE OF FORCE

Convention

Torture Act

any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity

As used in this chapter—

(1) ‘‘torture’’ means an act committed by a person acting under the color of law specifically intended to inflict severe physical or mental pain or

suffering (other than pain or suffering incidental to lawful sanctions) upon another person within his custody or physical control;

(2) ‘‘severe mental pain or suffering’’ means the prolonged mental harm caused by or resulting from—

(A) the intentional infliction or threatened infliction of severe physical pain or suffering;

(B) the administration or application, or threatened administration or application, of mind-altering substances or other procedures calculated to disrupt profoundly the senses or the personality;

(D) the threat that another person will imminently be subjected to death, severe physical pain or suffering, or the administration or application of mind-altering substances or other procedures calculated to disrupt profoundly the senses or personality . . . .

No comments.

November 9

Posted on November 8, 2017 and filed under 2017 Fall.

Breaking News

Cancel Water-Boarding 101

This is 2009, so take it as descriptive of the past, but perhaps also of the future.

Hagan JL, Hanson A. The Militarization of Mass Incapacitation and Torture during the Sunni Insurgency and American Occupation of Iraq. Social Sciences. 2016 Nov 30;5(4):78.

Assignment

Chapter 19

Resources

The Torture Memo

U.N. Comm’n on Human Rights, Situation of Detainees at Guantanamo Bay (2006)

Senate Select Committee. “Committee Study of the Central Intelligence Agency’s Detention and Interrogation Program.” United States Senate: Declassified Dec. 3rd (2014).

No comments.

November 14

Posted on November 10, 2017 and filed under 2017 Fall.

Breaking News

U.S. Gave Its Torturers a Pass, So International Court Steps In

Security Breach and Spilled Secrets Have Shaken the N.S.A. to Its Core

Assignment

CHAPTER 20 – CRIMINALIZING TERRORISM AND MATERIAL SUPPORT

Resources

November 16

Posted on November 14, 2017 and filed under 2017 Fall.

Breaking News

TBA

Assignment

Chapter 22 – Evidence in Criminal Trials

Be sure you can answer the questions before and after the cases.

Resources

The Making of a Suspect: The Case of Wen Ho Lee

The eventually fell apart.

CRS – Protecting Classified Information and the Rights of Criminal Defendants: The Classified Information Procedures Act (2012)

No comments.

November 21

Posted on November 17, 2017 and filed under 2017 Fall.

Major Earthquake Response Plan

USNORTHCOM Playbook Cascadia Subduction Zone (CSZ) Catastrophic Earthquake & Tsunami Response (April 2016)

Breaking News

Gerry Adams, Irish Republican Leader, to Step Down From Sinn Fein

Another terrorist who became a statesman when his side won. Brexit may rekindle the conflict.

Judge considers whether Trump’s tweets should open up government’s dossier probe

The government’s right to deny that information exists (when it does) in an FOIA request is called a Glomar response, from a case in which the government kept secret information about using a private submarine borrowed from Howard Hughes. Read more here

The Coast Guard’s ‘Floating Guantánamos’

Assignment

We will discuss the domestic role of the military and first response. You can skim the materials in book, but this is not exam material. We will then talk about the course and the sweep of the material.

The online class evaluations are now available, so you should do those.

Smallpox Bioterrorism Attack – try to watch this to see a realistic (perhaps optimistic) portrayal of a smallpox attack.

Edward P. Richards, The United States Smallpox Bioterrorism Preparedness Plan: Rational Response or Potemkin Planning? National Security Forum Issue, 36 Wm. Mitchell L. Rev. 5179 (2010) (alternative source)

If you want to know more about smallpox – my analysis of the problems with the smallpox response system and why the CDC gave into political pressure to weaken the response plan.

The Politics of Smallpox Modeling – Powerpoint

Smallpox Vaccine Injury Law Project

Resources

18 U.S. Code § 1385 – Use of Army and Air Force as posse comitatus

Whoever, except in cases and under circumstances expressly authorized by the Constitution or Act of Congress, willfully uses any part of the Army or the Air Force as a posse comitatus or otherwise to execute the laws shall be fined under this title or imprisoned not more than two years, or both.

(posse comitatus – a body of men, typically armed, summoned by a sheriff to enforce the law.)

Insurrection Act 10 U.S.C. §§331-335 (2012) –

§332. USE OF MILITIA AND ARMED FORCES TO ENFORCE FEDERAL AUTHORITY

Whenever the President considers that unlawful obstructions, combinations, or assemblages, or rebellion against the authority of the United States, make it impracticable to enforce the laws of the United States in any State or Territory by the ordinary course of judicial proceedings, he may call into Federal service such of the militia of any State, and use such of the armed forces, as he considers necessary to enforce those laws or to suppress the rebellion.

§333. MAJOR PUBLIC EMERGENCIES; INTERFERENCE WITH STATE AND FEDERAL LAW

The President, by using the militia or the armed forces, or both, or by any other means, shall take such measures as he considers necessary to suppress, in a State, any insurrection, domestic violence, unlawful combination, or conspiracy, if it . . . (2) opposes or obstructs the execution of the laws of the United States or impedes the course of justice under those laws. . . .

§334. PROCLAMATION TO DISPERSE

Whenever the President considers it necessary to use the militia or the armed forces under this chapter, he shall, by proclamation, immediately order the insurgents or those obstructing the enforcement of the laws to disperse and retire peaceably to their abodes within a limited time.

§382. EMERGENCY SITUATIONS INVOLVING WEAPONS OF MASS DESTRUCTION

(a) In general.—The Secretary of Defense, upon the request of the Attorney General, may provide assistance in support of Department of Justice activities relating to the enforcement of section 175, 229, or 2332a of title 18 during an emergency situation involving a weapon of mass destruction. Department of Defense resources, including personnel of the Department of Defense, may be used to provide such assistance if—

(1) the Secretary of Defense and the Attorney General jointly determine that an emergency situation exists; and

(2) the Secretary of Defense determines that the provision of such assistance will not adversely affect the military preparedness of the United States.

Doyle, Charles, and Jennifer K. Elsea. “The Posse Comitatus Act and Related Matters: The Use of the Military to Execute Civilian Law.” (2012).

USNORTHCOM Playbook Cascadia Subduction Zone (CSZ) Catastrophic Earthquake & Tsunami Response

What would the response look like for a really big disaster?

No comments.

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